BVA9511720
DOCKET NO. 93-14 263 ) DATE
)
)
On appeal from the decision of the
Department of Veterans Affairs Regional Office in
Indianapolis, Indiana
THE ISSUE
Entitlement to the restoration of a 20 percent rating for a
right knee disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. A. Samorajczyk, Associate Counsel
INTRODUCTION
The veteran served on active duty from November 1984 to
September 1987.
Service connection for a right knee disability was granted by
rating action of May 1988, a 20 percent evaluation was
assigned from September 19, 1987. By rating actin of
February 1992, the regional office (RO) advised the veteran
that it found that the current evidence warranted reduction
in the evaluation assigned to 10 percent, effective September
1, 1992. The veteran has indicated his disagrement with this
action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends that a higher evaluation for his
service-connected right knee disability is warranted because
he experiences knee pain and swelling, particularly after
working or participating in physical activities. He further
contends that his condition has not improved since his first
evaluation. He maintains that his symptoms more nearly
approximate those of a 20 percent evaluation rather than the
currently-assigned 10 percent rating.
DECISION OF THE BOARD
The Board of Veterans' Appeals (Board), in accordance with
the provisions of 38 U.S.C.A. § 7104 (West 1991), has
reviewed and considered all of the evidence and material of
record in the veteran's claims file. Based on its review of
the relevant evidence in this matter, and for the following
reasons and bases, it is the decision of the Board that the
preponderance of the evidence is against the restoration of a
20 percent evaluation for a right knee disability.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the veteran's appeal has been obtained by the
regional office (RO).
2. The veteran's right knee disability, has materially
improved and is currently manifested by painful episodes and
some lateral instability, is productive of not more than
slight impairment.
CONCLUSION OF LAW
The criteria for restoration of a 20 percent evaluation for
status post anterior ligament cruciate reconstruction of the
right knee have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 3.344, 4.7, 4.40, 4.71 (Plate II),
Diagnostic Codes 5257, 5260, 5261 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The veteran's claim is well grounded within the meaning of
38 U.S.C.A. § 5107 in that he has presented a claim which is
plausible. As it stands, the pertinent evidence of record,
which consists of service medical records and Department of
Veterans Affairs (VA) examination reports from 1989, 1992 and
1993, provides a sufficient basis upon which to address the
merits of his claim. Accordingly, no further assistance to
the veteran is required to comply with the duty to assist him
as mandated by 38 U.S.C.A. § 5107(a) (West 1991).
II. Increased Evaluations
Disability evaluations are determined by the application of a
schedule of ratings, which is based on the average impairment
of earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155 (West 1991);
38 C.F.R. Part 4 (1994). In determining the disability
evaluation, the VA must acknowledge and consider all
regulations which are potentially applicable based upon the
assertions and issues raised in the record and explain the
reasons and bases used to support its conclusion. Schafrath
v. Derwinski, 1 Vet.App. 589 (1991). These regulations
include, but are not limited to, 38 C.F.R. § 4.1 (1994),
which requires that each disability be viewed in relation to
its history and that there be an emphasis placed upon the
limitation of activity imposed by the disabling condition,
and 38 C.F.R. § 4.2 (1994), which requires that medical
reports be interpreted in light of the whole recorded
history, and that each disability must be considered from the
point of view of the veteran working or seeking work.
38 C.F.R. § 4.10 (1994) states that, in cases of functional
impairment, evaluations are to be based upon the lack of
usefulness, and medical examiners must furnish, in addition
to etiological, anatomical, pathological, laboratory and
prognostic data required for ordinary medical classification,
full description of the effects of the disability upon the
person's ordinary activity.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in parts of the system,
to perform the normal working movements of the body with
normal excursion, strength, speed, coordination and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage,
and the functional loss, with respect to all these elements.
The functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
claimant undertaking the motion. 38 C.F.R. § 4.40 (1994).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (1993).
When all the evidence is assembled, the Secretary is
responsible for determining whether the evidence supports the
claim or is in relative equipoise, with the veteran
prevailing in either event, or whether a preponderance of the
evidence is against a claim, in which case, the claim is
denied. Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
III. Right Knee Disability
38 C.F.R. Part 4, Diagnostic Code 5257 provides for
evaluation of impairment of the knee, including recurrent
subluxation and lateral instability. When slight, a rating
of 10 percent is provided. When moderate, a rating of 20
percent is provided. 38 C.F.R. § 4.71a (1994).
38 C.F.R. Part 4, Diagnostic Code 5260 provides for the
evaluation of limitation of flexion of the leg. When flexion
is limited to 45 degrees, a rating of 10 percent is provided.
When flexion is limited to 30 degrees, a rating of 20 percent
is provided. Normal motion of the knee is from 0 degrees of
extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate
II (1994).
38 C.F.R. Part 4, Diagnostic Code 5261 provides for the
evaluation of limitation of extension of the leg. When
extension is limited to 10 degrees, a rating of 10 percent is
provided. When extension is limited to 15 degrees, a rating
of 20 percent is provided. 38 C.F.R. § 4.71a (1994).
A historical review of the veteran's service medical records
reveals that he injured his right knee while skiing in
December 1986. At that time, he had immediate effusion and
was unable to walk. Surgical intervention was necessary in
January 1987 to repair a torn anterior cruciate ligament.
The postoperative diagnosis was torn anterior cruciate, right
knee, with anterolateral rotatory instability and complete
tear posterolateral meniscus. Surgery included arthroscopy,
arthroscopic partial posterolateral meniscectomy and repair
of anterior cruciate ligament with iliotibial band tenodesis.
Following surgery, the veteran’s treatment included a case,
physical therapy and crutches. The discharge diagnoses were
acute tear of the anterior cruciate ligament with acute
anterolateral rotatory instability; resected posterolateral
meniscal tear; and status post anterior cruciate ligament
repair, iliotibial band tenodesis and partial posterolateral
meniscectomy.
Outpatient treatment records reveal that the veteran had
right knee range of motion from 10 to 105 degrees in April
1987. The right knee lacked 5 additional degrees when
compared to the left knee. Rehabilitation was to continue
and he was counseled regarding his brace, activities and
other cautions.
The veteran was treated on an outpatient basis after a
locking episode in May 1987. He reported that his right knee
suddenly locked in extension when he was wearing his brace
while mowing the lawn. He felt a sudden lateral pain and
giving way of the knee. After resting the knee, it was
"fine" again. Tenderness was noted on the lateral joint
line. The diagnosis was hypertrophic synovial pinch
syndrome, which could occur again.
A Medical Board report was issued in June 1987. It was noted
that a May 1987 diagnosis was tear, anterior cruciate
ligament, right knee, with anterolateral rotatory
instability; posterolateral tear, lateral meniscus, right
knee. The veteran was wearing a right knee brace at the time
of examination. Flexion of the joint was 105 degrees. He
lacked 25 degrees of the fully extended position. No drawer
sign was present. There was mild plus laxity of the medial
collateral ligament. Crutch-assisted ambulation was used
only when the knee was sore. The veteran regularly
participated in strengthening exercises. The knee was less
than normal and the examiner believed that the joint would
not withstand military stresses. The Medical Board found
that the veteran was unable to perform his military duties in
a full duty capacity and recommended that he appear before a
Physical Evaluation Board.
Outpatient treatment records dated in July 1987 reveal that
right knee range of motion was from 0 to 118 degrees flexion.
The RO granted service connection for a right knee condition,
characterized as tear of the anterior cruciate ligament of
the right knee with anterolateral rotatory instability, in a
May 1988 rating decision. A 20 percent evaluation, effective
from September 1987, was assigned in accordance with the
rating criteria set forth in the Schedule for Rating
Disabilities, 38 C.F.R. Part 4, Diagnostic Code 5257.
The veteran underwent a VA examination in September 1989. He
told the examiner that he tore the ligaments and cartilage in
his right knee in service, which led to reconstructive
surgery in January 1987. He stated that his knee would "give
out" following surgery when he was walking or mowing the
grass. Sometimes he would fall or stagger. At the time of
his examination, the right knee ached and swelled constantly.
Since his discharge in September 1987, his knee reportedly
ached when he walked or made twisting motions. If he walked
or made twisting motions during the day, the knee would hurt
at night. After completing leg exercises, the knee would
hurt immediately. He stated that when he did not walk, make
twisting motions or exercise, the knee would ache "on and
off" during the day for approximately 10 minutes per episode.
The aches were related to the angle of the knee. The veteran
reported greater pain after standing for more than ½ hour,
which subsided when he sat down. Physical examination
revealed a normal gait. The right knee had a well-healed
medial surgical scar and was visibly larger than the left
knee. The right knee was slightly swollen, but not inflamed,
and was not red or hot. There was no tenderness on
palpation. There was crepitus of the right knee on movement.
The right knee was slightly unstable in the anterior medial
plane. The rest of the knee was stable. There was no pain
upon physical examination of the right knee. The patellar
reflexes of the right knee were normal. There were no
sensory deficits of the area, including the right knee. X-
rays revealed an orthopedic screw in the distal right femur.
The hardware was intact. No fractures or dislocations were
identified. There appeared to be a right knee effusion.
Upon VA examination in January 1992, the veteran reported
that he was employed in an electric plant and participated in
weight lifting competitions. He wore a right knee brace
occasionally. He recounted no frank episodes of instability
of the right knee, but reported occasional swelling. He
stated that both knees began to ache after long work days.
Physical examination revealed two longitudinal scars, one
anterior medial and one anterior lateral, along the aspect of
the veteran's right knee. He had a range of motion from 0 to
120 degrees of the right knee. He had no joint line
tenderness. There was no pivot shift or Lachman's exam. He
was neurovascularly intact distally. The veteran could heal
and toe walk without difficulty and could squat with some
difficulty. The assessment was status post successful
reconstruction of the right knee after anterior cruciate
ligament injury. It was noted that he should be examined
annually for degenerative changes of the right knee.
In a June 1992 decision, the RO decreased the evaluation of
the veteran's right knee disability from 20 percent to 10
percent, effective September 1992.
The veteran underwent a VA examination in February 1993. It
was noted that he worked in a factory and noticed knee pain
with prolonged standing and prolonged activity, as well as
with weather changes. He had pain with activity related type
symptomatology. He recalled two episodes of hyperextension
with pain and two episodes of giving out in the past. His
episodes of giving out were not accompanied by a classic
history. He stated that it had been a long time since his
knee had given out, and he could not remember whether it was
preceded by pain or other symptoms. For this reason, the
examiner was not sure if the giving way episodes delineated a
true history of instability. Physical examination revealed a
clinically well-aligned lower extremity. He had two healed
incisions, one medial and one lateral, consistent with
surgery. The lateral incision was consistent with the
lateral side repair. Range of motion of the right knee was
from 0 to 125 degrees. He had a negative Lachman's exam,
negative anterior drawer and negative posterior drawer. He
had no medial joint line pain. He had a 1+ lateral laxity
with the knee held in approximately 20 degrees of flexion and
a varus stress applied. He had some opening on the lateral
side with this, which was more than his contralateral knee
examination in the same position. He had no patellar tendon
tenderness or quadriceps tendon tenderness. He had no pain
referable to his patellofemoral joint and a negative shrug
sign. The assessment was status post anterior cruciate
ligament reconstruction and most likely lateral side repair.
The knee was stable with the exception of some lateral
instability. The veteran had an acceptable surgical result
and had maintained excellent quadricep strength. He
subjectively had some pain, but was status post a very
serious injury and on status and dynamic examination had an
acceptable result. Radiologic studies revealed a screw
traversing the distal right femur via a lateral approach.
Right knee effusion described in September 1989 X-rays was no
longer identified. A tiny osteophyte was noted at the
lateral aspect of the tibial plateau.
Upon review of the entire record of examinations and the
medical-industrial history, the Board finds the recent VA
examinations full and complete. As noted above, physical
examinations of the right knee in 1992 and 1993 disclosed a
successful reconstruction of the right knee with no joint
line tenderness. There was no effusion and only some lateral
instability with no recent episodes of giving way. Range of
motion has progressively improved. Right knee flexion is
within 15 degrees of normal and extension is normal. These
physical findings do not lend credibility to the veteran's
contentions that his right knee disability symptomatology
more nearly approximates that of a higher disability rating,
even with consideration of pain. Significantly, treatment
records and the VA examination contained no findings of
functional limitations due to pain. Thus, in light of the
normal X-rays and the absence of other significant
abnormalities on physical examination, it cannot be concluded
that more than slight impairment is shown so as to warrant a
rating in excess of 10 percent. The Board has considered the
provisions of 38 C.F.R. § 4.7; however, the current degree of
symptomatology does not more nearly approximate the criteria
for a rating of 20 percent.
The rating assigned for the veteran’s knee disability was in
effect for almost five years. Ratings which have been in
effect for five years are entitled to the provisions of
38 C.F.R. § 3.344, which provides that ratings will not be
reduced on one examination except in those instances where
all the evidence of record clearly warrants the conclusion
that sustained improvement has been demonstrated. It is
essential that the entire record of examinations and the
medical-industrial history be reviewed to ascertain whether
the recent examination is full and complete, including all
special examinations indicated and the entire case history.
The United States Court of Veterans Appeals (Court) has
indicated that the five-year requirement of 38 C.F.R. § 3.344
is to be used as a guideline (in a case involving a rating
which had been in effect for four years and 363 or 364 days).
Lehman v. Derwinski, 1 Vet.App. 339 (1991) In Smith v.
Brown, 5 Vet.App. 335 (1993), the Court found that a rating
in effect for four years, ten months, and 22 days was not
entitled to such consideration. It is not clear whether the
rating in this case, which had been in effect only a few days
less than five years, is entitled to the consideration under
provisions of 38 C.F.R. § 3.344; however, even with such
consideration, restoration is not warranted. The evidence
reflects that there has been sustained improvement warranting
reduction. When he was examined in 1992, it was noted that
he had fairly good range of motion without frank episodes of
instability.
In reaching this decision, the Board has also considered an
increased rating on the basis of an extraschedular evaluation
but finds that an increase on such basis is not warranted.
In an exceptional case where the schedular evaluations are
found to be inadequate, an extraschedular rating may be
assigned. Frequent periods of hospitalization or marked
interference with employment are some factors indicative of
an exceptional or unusual disability picture. In this case,
an exceptional disability picture is not presented. The
record shows that no hospitalization has been necessary since
the initial surgery in service, and the veteran's contentions
do not suggest marked interference with employment.
38 C.F.R. § 3.321 (1994).
ORDER
Restoration of a 20 percent evaluation for status post
anterior cruciate ligament reconstruction of the right knee
is denied.
V. L. JORDAN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.